The judiciary has one great attribute the other branches of government lack. It always conducts its business in public and seeks truth by compelling witnesses to appear and be cross-examined. The results are then published to the world. These principles are the foundation of a free society.

But what if a news reporter refuses to testify, claiming his first amendment right to publish news accounts without being called into court to be cross examined is also fundamental to a free society?

The Topsham select board hired a new road commissioner in executive session. According to a news reporter, Hank Buermeyer, one member then announced publicly that it had hired Bryan rather than James "because he's younger, so we can get a lot more service." Hank called James and told him the hiring was illegal. James then filed an age discrimination suit and subpoenaed Hank to testify he heard the statement. Hank claimed a privilege not to testify. James appealed.

Prior cases had established a reporter's privilege unless there was no other adequate available source to get the information. So, the newspaper argued, Hank didn't have to testify because the statement was made in a pubic meeting, and other people present could testify to the statement. And, he added, forcing a reporter into court would "chill" his first amendment rights and prevent news coverage of public events.

In a unanimous opinion, the Supreme Court ordered Hank to testify. The Court noted there was no electronic recording. Accordingly, the only evidence of the statement was from testimony of people who heard the spoken word, of which Hank was only one. Owing to "the vagaries of perception and memory," the Court wrote, "the reporter and alternative witnesses are not in any meaningful sense alternative sources of the same information, but are sources of different information." In sum, the Court was saying, because every person is different and sees and hears every event through the lens of his or her own personality or bias, no eye (or ear) witness can necessarily establish a "fact." Eyewitnesses to events are notoriously contradictory and often unreliable, as has been established though DNA evidence. Recognition of this fact, which had no apparent impact on the free press, helps the judiciary maintain its credibility as a truth seeker in a free society. Spooner v. Town of Topsham 2007 Vt. 98.